An essential requirement for certifying a class under Rule 23 is a means for presently ascertaining who is or is not a member of the proposed class. A trio of recent district court decisions has applied this ascertainability requirement to proposed TCPA class actions. The cases reach different conclusions as to whether a list of telephone numbers is a necessary or sufficient means of ascertaining class membership.
On August 20, 2015, the United States Court of Appeals for the Eleventh Circuit issued an opinion in Murphy v. DCI Biologicals Orlando, LLC, No. 14-10414, 2015 U.S. App. LEXIS 14632 (11th Cir. Aug. 20, 2015), affirming an order granting the defendants’ motion to dismiss, and on August 21, 2015, the United States Court of Appeals for the Sixth Circuit rejected a challenge to a jury verdict in favor of the defendant, Hill v. Homeward Residential, Inc., No. 14-4168, 2015 U.S. App. LEXIS 14703 (6th Cir. Aug. 21, 2015). In both cases the definition of “prior express consent” was at issue, and in both cases the plaintiff’s attempt to shrink the definition was rejected.
While various petitioners are challenging the FCC’s July 10, 2015 Declaratory Ruling before the D.C. Circuit, a recent district court decision is one of the first to address its impact on a pending TCPA claim. See Luna v. Shac, LLC, No. 14-cv-00607-HRL, 2015 U.S. Dist. LEXIS 109841 (N.D. Cal. Aug. 19, 2015). The decision confirms that even after the Declaratory Ruling, if the platform requires human intervention to send text messages, it will not be deemed an automated telephone dialing system (“ATDS”).
A California federal district court recently ordered a debt collector to produce an “outbound dial list” that identified all telephone numbers it had called using an ATDS over a one-year period. See Webb v. Healthcare Revenue Recovery Grp. LLC, No. C. 13-00737 RS, 2014 WL 325132 (N.D. Cal. Jan. 29, 2014). The ruling highlights the potential conflict between the discovery objectives of putative class counsel on the one hand, and the privacy rights of putative class members on the other.